City shouldn’t get a cut of defendants’ cash bail fees | Editorial

It would be hard to identify the city's least-liked tax, in part because there are so many. For some, it's the wage tax, for others the beverage tax. For us, the most insidious is the "poor tax" — fees and fines that end up hitting low-income people the hardest. Civil asset forfeiture is one; uncompensated sheriff's sales proceeds for those losing their homes to foreclosures can be another. And according to a recent report, cash bail has also been a source of revenue for the city.

According to reporting by Philadelphia-based journalist Maura Ewing — published in The Appeal and Philadelphia Weekly as a part of the "Broke in Philly" series — the city routinely keeps 30 percent of bail deposits as "processing fees" even if the initial charges are dropped.

When people are charged with a crime, judges can impose cash bail. The accused is required to pay 10 percent of the bail amount. No matter what the outcome of a person's case, the city gets a 30 percent cut. That means that people who were wrongfully arrested and charged are literally paying for the mistake of officials. It's also putting burdens on people who can least afford it.

The bail fee is one of many fines and fees that the court imposes on defendants. Unlike most fees, which are dictated by state law, the bail fee is in the city's control and goes to the city itself. In fiscal year 2018, the bail fee added $2.9 million to the city's general fund.

Earlier this year, City Council passed unanimously a resolution calling on the district attorney to end cash bail in the city. DA Larry Krasner responded by directing prosecutors to not seek cash bail for a slew of offenses.

Aware of this, Mayor Kenney did not bank on revenue from bail deposits for the 2019 budget. According to the mayor's office, they are working with the First Judicial District on changes to the bail deposit policy.

Meanwhile, the city continues to keep the deposits.

Even though other court fines and fees are mandated by state law, judges are allowed to take into account ability to pay when imposing fees. That rarely, if ever, happens in Philadelphia. Faced with a similar situation, judges in Mecklenburg County, N.C., invited lawyers from the Harvard Law School's criminal justice debt initiative to train them on how to conduct ability-to-pay assessments. Further, the Harvard lawyers created for judges a "cheat sheet" with questions to ask to assess ability to pay and which fines and fees they are allowed to waive. The First Judicial District should invite the initiative to conduct similar training for all judges in Philadelphia.

The people who are faced with these fines and fees often can't pay them. Owing money to the court is a barrier to expungement of records and could have grave implications on people's credit. The city then finds itself investing in poverty alleviation programs and efforts to prevent recidivism. A more logical route would be not imposing excessive fines and fees on Philadelphians in the first place.

Correction: A previous version of the editorial referred to The Appeal as a blog of Harvard Law. The Appeal is criminal justice news site which is a rebrand of a blog that was affiliated with Harvard in the past.